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History Arguments Advanced in Supreme Court Cases

Bruce Craig, April 2005

Over the past few years, the display of the Ten Commandments has become what some consider a focal point of a new culture war. In early March the Supreme Court heard oral arguments on the two most recent controversial cases that focus on the display of the Ten Commandments on government property. Interestingly, "history" was at the core of arguments presented by both sides.

The first case, Van Orden v. Perry (03-1500) focuses on the issue whether a six-foot high stone monument displaying the Ten Commandments on the Texas State Capitol grounds (between the Capitol and the state supreme court) violates the First Amendment; the second, McCreary County v. ACLU (03-1693) considers whether a local courthouse in Kentucky can exhibit the Ten Commandments in a public display along with other historical documents.

In the Supreme Court room itself, there is a frieze dedicated to history’s great lawgivers. Justices can look up from their seats and view an image showing Moses and Confucius sitting beside John Marshall. The frieze served as a catalyst for arguments from lawyers representing both sides. The lawyer representing an opponent of the Texas monument, for example, told the Court that the Court’s frieze is constitutional because it places the commandments in a secular, historical context. But then, "so does the Texas monument," argued the attorney general of Texas—it is part of a "park-like" area doted with monuments to veterans, pioneers, and other "historical influences" that have helped to shape the state of Texas, he stated.

For several hours opponents of the granite Ten Commandments monument in Texas argued that its presence on public property amounts to a governmental imposition of monotheism; proponents of the monument claimed it was nothing more than a public recognition of the role of Judeo-Christian influences on Western civilization and the founding of the United States. In the Kentucky case proponents also argued the "historical nature" of their "exhibit" which includes not just the display of the commandments, but other documents such as the Magna Carta and the lyrics to the national anthem. Opponents argued that the "secular purpose" of the displays are "a sham." In the end, all agreed that, bottom line, "context mattered."

Come July, the Court will render a decision and the nation will learn to what extent history-based arguments prevailed in swaying the justices. Surely, when it renders judgment, the Court will have no paucity of historical arguments to bolster both the majority and minority position.